| l | I | JUDGMENT NO. ..H,.?..% |
| IN THE FEDERAL COURT OF AUSTRALIA | ) | \ |
| GENERAL DIVISION | 1 | NO. QB 155 of 1989 |
| BANKRUPTCY DIST-E | 1 |
| - | 5 | ) |
| EX PARTE: | W E S S A PTY LTD |
Applicant
| AND : | Robert James PURVIS and Heather Jov PURVIS |
Respondent
MINUTES OF ORDER
| JUDGE MAKING ORDER: | Spender J |
| DATE OF ORDER: | 21 February 1992 |
| WHERE MADE: | Brisbane |
| THE COURT ORDERS THAT: |
1. The application for leave to file an objection to discharge is dismissed.
2. There is to be no order as to costs.
| NOTE) | Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules. |
| IN THE F E D E W COURT OF AUSTRALIA | 1 | l |
| GENERAL DIVISION | 1 | No. QB 155 of 1989 |
| BANKRUPTCY DISTRICT OF THE | 1 |
| STATE OF OUEENSLAND | 1 |
| RE | I | Robert James PURVIS and Heather Jov PURVIS |
| EX PARTE: | LABESSA PTY LTD |
AV~licant
| AND I | Robert James PURVIS-and Heather Jov PURVIS |
Respondent
| CORA13r | Spender J. |
| PLACE : | Brisbane |
| W: | 21 February 1992 |
EX TEMPORE REASONS FOR JUDGMENT
This is a contested application for the grant of leave to a creditor to enter an objection to the discharge of Robert James Purvis and Heather Joy Purvis from their respective bankruptcies. Pursuant to S. 149 (1) of the Bankruvtcv Act 1966, a person who becomes a bankrupt is ordinarily discharged from that bankruptcy three years after its commencement, but automatic
| discharge under s . 149(1) is subject to the other provisions in | that section. In particular, by S. 149(3)(c), a bankrupt is not |
| discharged from bankruptcy if - |
" . . .a creditor has, with the leave of the Court, entered, an objection, in accordance with the prescribed fornr and in the prescribed manner, to the discharge of the bankrupt by force of this section and the objection has not been withdrawn or lapsed before the time when the bankrupt wuld have
| been so discl~arged | but for this subsectioi~; | " |
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As is clear from that provision, leave of the court is required where a creditor seeks to enter an objection to the discharge of a bankrupt by force of S. 149. Section 149(4) provides that:
| " | An | o b j e c t i o n s h a l l n o t be | e n t e r e d under paragraph |
| 3 ( c ) o t h e r w i s e | t han | on | one | or | niore | of | the |
| f o l l o w i n g | grounds: |
| ( a ) | t h a t | t h e bankrup t | i s a b l e , | or | i s l i ke ly |
| w i t h i n | f ive | y e a r s | from | the | d a t e | o f | the |
| b a n k r u p t c y t o be | a b l e , | t o make a | s i g n i f i c a n t |
| c o n t r i b u t i o n | to | h i s e s t a t e ; |
| (b) | t h a t the d i sc l large of the bankrup t by force o f t h i s s e c t i o n would p r e j u d i c e the |
| a d n i l n i s t r a t i o ~ ~ | o f h i s e s t a t e ; | |
| ( c ) | | t h a t | the bankrup t | h a s | f a i l e d | t o co-opera te | |
| i n the | admin i s t ra t i011 o f h i s | e s t a t e ; | |
| ( d ) | | t h a t t h e conduct o f the bankrup t , | either i n | |
| r e s p e c t | o f | the | per iod | b e f o r e o r t h e pe r iod | |
| a f t e r the | d a t e o f the bankrup t cy , | h a s been | |
| u n s a t i s f a c t o r y . | " | |
Mr and Mrs Purvis each presented their debtors' petitions on 23 February 1989 and would, in the absence of an objection to their discharge being entered, by effluxion of time and the provisions of S. 149, be entitled to be discharged from their bankruptcy three years after 23 February 1989. By an
| application filed on 17 February 1992, and therefore very close | to the discharge by virtue of S. 149, a creditor of the |
bankrupts, Labessa Pty Ltd ('Labessa'), has sought leave to enter
an objection in accordance with 8. 149(3)(c). |
| The grounds of the objection relied on are those particularly specified in S. 149(4)(a) and (d). Due to the shortness of time between the filing of the application and the period for automatic discharge, Mr Purvis received very short notice of the application. It is competent for an application |
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for leave to be heard ex parte; see Re Brown: kx parte Dai-Ichi Kanavo Australia Ltd (1986) 66 A.L.R. 519. However, Toohey J. makes it plain in the last paragraph of his judgment at p. 523 that, while it is competent for the court to hear and determine ex parte an application by a creditor for leave to enter an objection pursuant to B. 149(3)(c) of the Bankru~tcv Act, as a matter of practice such applications should be heard on notice and "it is preferable that the bankrupt be served with the
application".
In the present case there was service, albeit short, and Mr Purvis has filed, in the time available to him, an affidavit seeking to meet the material on which Labessa relies in its application for leave.
Mr Geoffrey Edwards, who is a director of Labessa, complains that no contribution has been made by either of the bankrupts to their estates since the presentation of their debtors' petition. Prior to the filing of the debtors' petitions
| on behalf of the bankrupts, Labessa obtained a judgment against | them for $26,000.00. Mr. Edwards indicates that his inquiries |
| suggest that Mr. Purvis has been in continuous employment during the whole of the period of the bankruptcy with a net income of $600.00 a week with a company car and other benefits. |
| Mr. Edwards alleges that he has been informed by an officer of the Official Receiver's Office that there have been applications made to the male bankrupt to make contribution to his estate but that the male bankrupt has refused to do so. If, in fact, that was the case and there was evidence of a capacity |
| to make contribution, then the matter might go some way towards meeting the requirements of S. 149(4)(a). As to the other material relied on by Mr Edwards, there is a suggestion in paragraph 9 of his affidavit that immediately preceding the presentation of the petition the bankrupts put Labessa to unnecessary expense by a frivolous and vexatious defence to the action brought against them by Labessa, and on which judgment was subsequently obtained. |
| The position unhappily is that the evidence relied on in support of the application is very scanty. What is shown is that the male bankrupt during the period of the bankruptcy had a net income of the order of $24,000.00, but there is no evidence as to his outgoings, and the only matter of a pejorative nature is the reference, in paragraph 5, to attempts by persons in the Official Receiver's Office to have Mr Purvis make contributions to his estate and his refusal so to do. |
| Labessa was not the sole creditor of himself and his wife. He However, the affidavit of Mr Purvis makes it plain that | deposes to his gross and net salary. He makes explicit reference | |
| to hie dealings with Mr Burke of the Official Receiver's Office, including an occasion as recently as this morning. 1 am told by |
| Mr Parker, who appeared for the creditor seeking leave, that the |
| Official Receiver has indicated that he has no intention of seeking himself to file an objection, and Mr Purvis swears that the Official Receiver had communicated to him his conclusion that neither Mr Purvis nor his wife were in a position to make any contribution to the estate. |
| Further, in paragraph 10, Mr Purvis swears: |
" Due t o these circumstances which has been accepted by the Of f ic ia l Receiver over the previous three years taking in to account nty financi a1 position, I cannot make any
| contribution to the estate nor can my wife. | This |
| position | w i l l be uncha~lged a t the expiration o f |
f ive years front the date o f bankruptcy. "
The material is sparse but the onus is on the creditor seeking leave. I have not been supplied with sufficient information to indicate the nature and extent of any financial obligations on Mr or Mrs Purvis. The material does show that there are two dependent children including a small child with some medical difficulties. I am left in the position that on the material before me, I am unable to reach any satisfaction, either on a prima facie basis or otherwise, as to any of the grounds set out in S. 1 4 9 ( 4 ) and in particular in relation to the ground that
| " | ( a ) ... i s able, or i s l i k e l y within f ive years from the date o f the bankruptcy t o be able, t o make a significant contribution t o h i s estate; " |
I take into account what has been said concerning the position of the Official Receiver as regards these bankruptcies, and in all the circumstances I decline to grant leave to Labessa
Pty Ltd to enter an objection to the discharge of the bankruptcy
of Robert James Purvis or the bankruptcy of Heather Joy Purvis.
| The | a p p l i c a t i o n | t o t h e c o u r t | i s d i s m i e s e d . | I | make | no |
| o r d e r | a s | t o c o s t s . |
| I | cer t i f y | t h a t | t h i s | and | the |
| preced ing | f ive | ( 5 ) pages | a r e a |
| t r u e | c o p y | o f | t h e | r easons | f o r |
| judgment | h e r e i n | o f 11is Honour |
| J u s t i c e J .E.J . | Spender . |
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| Date: | 21 ~ e b k d a r ~ | 1992 |
| Counsel | f o r | t h e a p p l i c a n t : | M r . | J . | C . | Parker |
| i n s t r u c t e d by: | W . | Rosen | & | Assoc . |
| The responden t : | Mr. | P u r v i s | i n person. |
| Date | o f I f ear ing: | 21 | February 1992 |
| Date o f Judgment : | 21 February 1992 |